Citation Nr: 0517060
Decision Date: 06/22/05 Archive Date: 07/07/05
DOCKET NO. 99-21 290 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to an increased rating for bronchial asthma,
evaluated as 30 percent disabling prior to October 1, 2004,
and as 60 percent disabling beginning on that date.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
E. B. Joyner, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1972 to
November 1979. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from a May 1999 rating
decision by the Department of Veterans Affairs (VA) Regional
Office (RO) in Roanoke, Virginia.
When the case was last before the Board in October 2003, it
was remanded for additional development.
In a February 2005 decision, the RO increased the rating for
bronchial asthma to 60 percent, effective October 1, 2004.
As this does not represent the highest rating for this
disability, the appeal continues.
The Board also notes that the examiner who conducted the
October 2004 VA examination stated that the veteran is
unemployable due to his service-connected bronchial asthma.
The veteran currently meets the schedular criteria for a
total rating based on unemployability due to service-
connected disabilities. Consequently, the Board concludes
that the issue of entitlement to a total rating based on
unemployability is raised by the record. Since this issue
has not been addressed by the RO, it is referred to the RO
for appropriate action.
FINDINGS OF FACT
1. On pulmonary function testing prior to October 1, 2004,
the veteran's Forced Expiratory Volume in one second (FEV-1)
has not been worse than 56 percent of predicted and the ratio
of FEV-1 over Forced Vital Capacity (FVC) has not been worse
than 56 percent of predicted.
2. On pulmonary function testing beginning on October 1,
2004, the veteran's FEV-1 has not been worse than 40 percent
of predicted and the ratio of FEV-1 over FVC has not been
worse than 40 percent of predicted.
3. At no time has the veteran required monthly visits to a
physician for exacerbations of bronchial asthma, nor has he
required systemic corticosteroids at least three times a year
because of the disorder.
CONCLUSIONS OF LAW
1. Entitlement to an evaluation in excess of 30 percent for
bronchial asthma for the period prior to October 1, 2004, is
not established. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 4.1, 4.7, 4.97, Diagnostic Code 6602 (2004).
2. Entitlement to an evaluation in excess of 60 percent for
bronchial asthma for the period beginning October 1, 2004, is
not established. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 4.1, 4.7, 4.97, Diagnostic Code 6602 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
Subsequent to the filing of the appellant's claim, the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000), was signed into law and
codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West 2002). In addition, regulations
implementing the VCAA were published at 66 Fed. Reg. 45,620,
45,630-32 (August 29, 2001) and codified at 38 C.F.R. §§
3.102, 3.156(a), 3.159 and 3.326 (2004). The VCAA and the
implementing regulations are applicable to the present
appeal.
The Act and the implementing regulations essentially
eliminate the requirement that a claimant submit evidence of
a well-grounded claim, and provide that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. They also require VA
to notify the claimant and the claimant's representative, if
any, of any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary to
substantiate the claim. As part of the notice, VA is to
specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant. In
addition, VA must also request that the veteran provide any
evidence in his possession that pertains to the claim.
The record reflects that through the supplemental statements
of the case, a May 2003 letter from the RO, and an August
2004 letter from the Tiger Remand Team, the veteran has been
informed of the evidence and information necessary to
substantiate his claim, the information required of him to
enable VA to obtain evidence in support of his claim, the
assistance that VA would provide to obtain evidence in
support of his claim, and the evidence that he should submit
if he did not desire VA to obtain such evidence on his
behalf. Although VA did not specifically inform the veteran
that he should submit any pertinent evidence in his
possession, it did inform him of the evidence that would be
pertinent and that he should either submit such evidence or
provide the RO with the information necessary for the RO to
obtain such evidence. Therefore, to this extent, the Board
is satisfied that VA has complied with the notification
requirements of the VCAA and the implementing regulations.
See Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The record also reflects that all pertinent available service
medical records and all available post-service medical
evidence identified by the veteran have been obtained. In
addition, the veteran has been afforded appropriate VA
examinations. Neither the veteran nor his representative has
identified any outstanding evidence that could be obtained to
substantiate the claim. The Board is also unaware of any
such outstanding evidence or information. Therefore, the
Board is also satisfied that VA has complied with the duty to
assist provisions of the VCAA and the implementing
regulations.
The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to
a claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[I]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")." Id. At 121. However, the Court also stated that
the failure to provide such notice in connection with
adjudications prior to the enactment of the VCAA was not
error and that in such cases, the claimant is entitled to
"VCAA-content complying notice and proper subsequent VA
process." Id. At 120.
In this case, the RO readjudicated the veteran's claim for an
increased rating for bronchial asthma following compliance
with the notice requirements of the VCAA and the implementing
regulations. There is no indication or reason to believe
that its decision would have been different had the claim not
been previously adjudicated. In sum, the Board is satisfied
that the RO properly processed the claim following compliance
with the notice requirements of the VCAA and the implementing
regulations.
Factual Background
In accordance with 38 C.F.R. §§ 4.1, 4.2 (2004) and Schafrath
v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed
all evidence of record pertaining to the history of the
service-connected disability. The Board has found nothing in
the historical record which would lead to the conclusion that
the current evidence of record is not adequate for rating
purposes. Moreover, the Board is of the opinion that this
case presents no evidentiary considerations which would
warrant an exposition of remote clinical histories and
findings pertaining to this disability.
The veteran filed the current claim for an increased
evaluation in November 1998.
A February 1999 VA exam report notes that the veteran's FVC
was 124 percent of predicted, his FEV-1 was 98 percent of
predicted, and his FEV-1/FVC was 91 percent of predicted.
The examiner stated that this showed normal pulmonary
function. On physical exam the lungs showed wheezes in the
left upper lobe without accessory muscle use and with
symmetrical expansion.
A September 2000 pulmonary inpatient progress note states
that the veteran was seen for a follow-up visit for chest
pain and was subsequently admitted to the hospital for acute
renal failure. There was no recurrence of purulent sputum,
cough, or chest pain. On exam, there were neither rales nor
wheezes. No further pulmonary clinic follow-up was
necessary.
A December 2002 VA progress note states that the veteran's
lungs were clear bilaterally, and there were no wheezes,
rales, or rhonchi.
An April 2003 VA progress note states that the veteran
complained of shortness of breath.
VA medical records from May 2003 show that the veteran's FEV-
1/FVC was 63 percent of predicted and his FEV-1 was 63
percent of predicted.
The report of a VA examination dated October 1, 2004, notes
that the veteran complained of asthma attacks that occur once
or twice a month and last a few hours. After the attacks he
resumes his normal activity, but during an asthma attack he
has to rest and take his prescription medication. He was not
currently on oral steroids and has not been on oral or
systemic steroids. He has not had any prescribed periods of
bed rest or incapacitation due to his asthma in the last
year. Pulmonary function tests showed that the veteran's FVC
was 93.2 percent of predicted, his FEV-1 was 55 percent of
predicted and his FEV-1/FVC was 47 percent. The examiner
stated that the spirometry revealed the presence of moderate
obstructive lung disease. Diffusing capacity was moderately
decreased and did not improve when adjusted for alveolar
volume, which indicated loss of functional pulmonary
capillary. When compared to tests performed in May 2003,
flows were moderately worse. The diagnosis was asthma with
moderate obstructive defect. Based on the current condition
of the veteran's asthma and the progressive worsening since
2003, the examiner opined that the veteran is not considered
employable.
Analysis
Disability evaluations are determined by the application of a
schedule of ratings, which is in turn based on the average
impairment of earning capacity caused by a given disability.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2004). Separate
diagnostic codes identify the various disabilities.
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
In addition, when there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b)
(West 2002); 38 C.F.R. § 4.3 (2004).
A 10 percent rating will be assigned for bronchial asthma
manifested by FEV-1 of 71- to 80-percent of predicted, a
ratio of FEV-1/FVC of 71- to 80 percent of predicted, or if
intermittent inhalational or oral bronchodilator therapy is
required. A 30 percent rating will be assigned for bronchial
asthma with an FEV-1 of 56- to 70 percent of predicted, FEV-
1/FVC of 56 to 70 percent of predicted, where daily
inhalational or oral bronchodilator therapy is required, or
where inhalational anti-inflammatory medication is required.
The next higher rating of 60 percent is appropriate for
bronchial asthma with an FEV-1 of 40 to 55 percent of
predicted; FEV-1/FVC of 40 to 55 percent of predicted; where
at least monthly visits to a physician are required for
exacerbations; or where intermittent (at least three per
year) courses of systemic (oral or parenteral)
corticosteroids are required. 38 C.F.R. § 4.97, Diagnostic
Code 6602 (2004).
The findings on the February 1999 VA exam and the May 2003 VA
progress notes show that the veteran's bronchial asthma is
not more than 30 percent disabling for the period prior to
October 1, 2004. The February 1999 exam results were
described as normal and indicate that the FVC was 124 percent
of predicted, the FEV-1 was 98 percent of predicted, and the
FEV-1/FVC was 91 percent of predicted. These results do not
warrant a rating higher than the then assigned 30 percent.
Moreover, the May 2003 spirometry results, which show that
the FEV-1/FVC was 63 percent of predicted and the FEV-1 was
63 percent of predicted, indicate that a 30 percent rating
(FEV-1 of 56- to 70 percent of predicted, FEV-1/FVC of 56 to
70 percent of predicted) is appropriate for this time period.
The findings on the pulmonary function tests in October 2004
do not evidence disability to a greater degree than is
already assigned. The pulmonary function testing in October
2004 disclosed impairment that justifies the currently
assigned evaluation of 60 percent (FEV-1/FVC of 40 to 55
percent of predicted), but not higher. Nothing in the
medical evidence, to include extensive treatment records,
shows that the veteran has had at least monthly visits to a
physician for required care of exacerbations or at least
intermittent courses of systemic corticosteroids for the
disorder.
In sum, the preponderance of the evidence is against the
veteran's claim.
ORDER
Entitlement to a higher rating for bronchial asthma is
denied.
____________________________________________
Shane A. Durkin
Veterans Law Judge
Board of Veterans' Appeals
Department of Veterans Affairs